Citation: R v Ahmed (No 2) [2019] NSWSC 517
Court: Supreme Court of New South Wales
Date: 8 May 2019
Judge: Schmidt J
Background
The accused killed his wife by inflicting 14 stab wounds at their shared Parramatta home in February 2017. He called triple zero that night, told the operator his wife was dead, that he had stabbed her, and that an ambulance was not needed. He never denied inflicting the wounds.
The accused gave police a detailed account of events leading up to the killing, including that he had read text messages on his wife's phone confirming an ongoing affair, and that it was only after reading those messages that he "lost control." While in custody, he was diagnosed with a depressive illness and later offered to plead guilty to manslaughter, but the Crown did not accept that offer.
At trial, the accused advanced a partial defence of substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900 (NSW). If established on the balance of probabilities, this partial defence would reduce a murder conviction to manslaughter. The trial proceeded before a judge alone after the Crown consented to that mode of trial, following the late disclosure of seized digital material containing internet searches about punishing adulterous wives.
Legal Issues
- Whether the accused had established, on the balance of probabilities, the partial defence of substantial impairment under s 23A of the Crimes Act 1900 (NSW), specifically:
- Whether he suffered an abnormality of mind arising from an underlying condition at the time of the killing
- Whether that abnormality substantially impaired his capacity to control himself
- Whether the impairment was so substantial that community standards would permit his liability to be reduced from murder to manslaughter
- How conflicting expert psychiatric opinions should be weighed against the other evidence, including the accused's own acts, statements and conduct before and after the killing
- Whether the Crown had established beyond reasonable doubt that the accused intended to kill the deceased
Decision
Schmidt J found no dispute on the first element: both expert witnesses agreed the accused had suffered a chronic adjustment disorder (a form of depressive illness) for approximately two years before the killing, and the court accepted this constituted an "abnormality of mind" arising from an underlying condition within the meaning of s 23A. The court noted, however, that it was not satisfied the condition had lasted as long as the experts concluded, or that it was as severe as one expert (Dr Nielssen) had assessed it to be at the time of the killing.
On the second element, the court preferred the evidence of the accused's own conduct over the expert opinions. The accused had delayed calling triple zero until he was certain his wife had stopped breathing, had made Facebook posts, smoked cigarettes, and compelled his injured wife to unlock her phone using her thumb before she died. Schmidt J found this conduct demonstrated deliberate, purposeful action rather than an impaired capacity to control himself. The court was satisfied beyond reasonable doubt that the accused had formed and acted upon an intention to kill.
On the third element, and independently of the second, Schmidt J concluded that even if substantial impairment had been established, current community standards would not permit liability to be reduced to manslaughter. The court described the accused's conduct after the stabbing as "pitiless" and found it put the matter beyond argument.
The court also assessed the reliability of the accused's various accounts. His account to Dr Nielssen, that he had held his wife while she told him she was dying before he called triple zero, was rejected as inconsistent with what he said during the triple zero call itself, what he told attending police, and the agreed facts. Schmidt J treated the triple zero call as the most reliable account, given its timing and brevity.
Orders Made
- The accused was found guilty of murder.
- His conviction for murder was entered.
- The matter was stood over for sentence.
Key Takeaways
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Under s 23A of the Crimes Act 1900 (NSW), an accused must establish on the balance of probabilities that: an abnormality of mind arose from an underlying condition; that abnormality substantially impaired the capacity for self-control; and that the impairment was so substantial that community standards would permit a reduction from murder to manslaughter.
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Expert psychiatric evidence is not determinative on the first two elements of the s 23A defence. A court may reject expert opinions where other evidence, including the accused's own conduct, statements and demeanour, conflicts with and outweighs those opinions.
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Expert evidence is expressly inadmissible on the third element of s 23A (whether community standards would permit a reduction to manslaughter). That question is reserved entirely for the court.
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Conduct after a fatal act can be directly relevant to whether a substantial impairment defence is established. Here, the accused's deliberate post-stabbing behaviour, including waiting until the deceased stopped breathing before calling for help, supported a finding that he was acting with intent rather than impaired self-control.
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Where an accused elects not to give evidence in support of a partial defence they bear the onus to prove on the balance of probabilities, the court will assess that defence entirely on the other material tendered, including expert reports and the accused's prior statements.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 18, 23A
- Criminal Procedure Act 1986 (NSW), ss 132, 133
- Evidence Act 1995 (NSW)
Cases
- R v Ahmed [2019] NSWSC 55
- R v Byrne [1960] 2 QB 396
- Quinn v R [2018] NSWCCA 297
- R v Welsh (1996) 90 A Crim R 364
- R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20
- R v Trotter (1993) 35 NSWLR 428